Pubdate: Thu, 07 Feb 2013
Source: NOW Magazine (CN ON)
Copyright: 2013 NOW Communications Inc.
Contact:  http://www.nowtoronto.com/
Details: http://www.mapinc.org/media/282
Author: Matt Mernagh

MATT MERNAGH UP IN SMOKE

I Should Be in the Government's Med Pot Program, but the Courts Aren't So Sure.

I felt the agony of defeat Friday, February 1, when the Ontario Court 
of Appeal overturned an Ontario Superior court ruling in my case.

The earlier ruling eliminated the federal government med pot program 
that was not allowing access to the program to sick people who could 
not get a doctor to sign the required papers.

But the feds won their appeal last week, and prohibition continues 
for people with medical problems. And now they're going to have to 
figure out some way to get green.

Easier said than done. But the Court of Appeal is not so sure. I 
should be in the government's program because of my brain tumour, 
fibromyalgia and scoliosis, but a doctor won't sign the Health Canada 
application to make me legal.

After eight months of pondering, the Court of Appeal finally pointed 
out the weakness in our case: we didn't call a doctor to testify. 
Without doctors, we had no argument, it said.

About the only thing both courts appear to agree on somewhat is that 
I should possess a med pot licence. However, the Court of Appeal 
wondered why a doctor won't sign me up, while the lower court 
accepted our slew of documentation showing lack of doctor support.

In the lower court, we successfully argued that the government 
program is an illusion, but the Court of Appeal dismissed this idea, too.

The higher court went on to clarify that just because the other 
witnesses and I are ill doesn't give us an automatic right to med 
pot. People in Health Canada's med pot program are permitted an 
exemption from the prohibition - that is all. There is no inherent right.

The lower court believed I was entitled to medicate with marijuana, 
but the Court of Appeal ruled that this was an error in judgment. 
 From this stemmed a slew of further legal mistakes, it reasoned, 
that led to our earlier victory.

All of us - myself, our witnesses, my lawyer who framed the argument 
and the lower court judge who erred in reading case law - were given 
a full helping of legal lessons by the justices.

My lawyer and I are going to seek leave to appeal to the Supreme 
Court. It's not automatic we'll get it, but we're not roached yet. 
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MAP posted-by: Jay Bergstrom